Florida’s Second District Court of Appeal agrees to consider whether 12th Judicial Circuit Court judge erred in ruling on part of North Beach Road vacation case

Mike Cosentino has appealed Judge Frederick Mercurio’s Oct. 2 order related to Cosentino’s 2016 lawsuit against Sarasota County

The Second District Court of Appeal is in Lakeland. Image from the court’s website

Florida’s Second District Court of Appeal has agreed to hear an appeal of a 12th Judicial Circuit Court decision involving a Siesta Key resident’s attempt to overturn the County Commission’s May 2016 vacation of a 357-foot-long segment of North Beach Road.

In the meantime, Sarasota County has asked the Circuit Court judge presiding over the case, Frederick P. Mercurio, to dismiss the final part of the complaint.

Siesta resident Michael Cosentino has appealed Mercurio’s Oct. 2 order, which agreed with the argument of Assistant County Attorney David Pearce that the county met the statutory deadline for publishing formal notice of the County Commission’s vote vacating part of North Beach Road. Mercurio also ruled, as Pearce had asked, that the County Zoning Code does not require disclosure of all owners of property involved in a petition for a Coastal Setback Variance.

Those decisions essentially threw out Count II of Cosentino’s legal challenge of the County Commission’s actions in a May 11, 2016 public hearing. As a result of that hearing, the board granted the request of three sets of North Beach Road property owners to vacate the portion of the road that had been closed to traffic since 1993 because of repeated storm damage.

In Cosentino’s Nov. 1 Notice of Appeal, attorneys Ralf Brookes of Cape Coral and Elizabeth Gomez-Mayo of Winter Park pointed out that, according to the Florida Rules of Appellate Procedure, any appeal of a partial final judgment in a case must be undertaken within 30 days of the judge’s rendition of his decision.

In its Nov. 7 order, the Second District Court of Appeal, based in Lakeland, notified the parties that it would accept Cosentino’s challenge of Mercurio’s Oct. 2 ruling. As of The Sarasota News Leader’s Nov. 13 check of the online Appeal Court’s docket, no documents had been filed in the case.

After Mercurio issued his Oct. 2 order, Cosentino told the News Leader he was not surprised to learn of the action and that he looked forward to prevailing on appeal.

Along with the county and Cosentino, the case involves Intervenors Dennis and Wendy Madden and William H. and Sheila Sanchez Caflisch. The couples were among the original petitioners for the road vacation.

Before bollards were installed at the intersection, a sign on westbound Columbus Boulevard advised drivers that they could turn left only. Motor vehicle access to North Beach Road had been prohibited by the county since 1993. File photo

The Maddens won the Coastal Setback Variance on May 11, 2016, in conjunction with the County Commission’s road vacation approval. They needed the 8,265 square feet associated with the road segment to constitute enough property under unified title so they could build six new dwelling units that would replace 12 decades-old structures that do not conform to modern building standards.

The Maddens have been pursuing partial summary judgment decisions against Cosentino, as well, winning one in mid-April. They have a second hearing before Mercurio scheduled for Nov. 21 on two more arguments in Cosentino’s complaint.

Cosentino has maintained since May 2016 that the County Commission violated a county Comprehensive Plan policy that called for the board not to vacate road segments adjacent to bodies of water. Only then-Commissioner Christine Robinson voted against the road vacation, citing that policy. Charles D. Bailey III, the attorney for the petitioners, pointed out to the board that his clients all owned property seaward as well as landward of the road. Because of that private property adjacent to the Gulf of Mexico, Bailey contended, the Comprehensive Plan policy Cosentino has cited did not apply to his clients’ petition.

An engineering drawing shows the area of the North Beach Road vacation. Image courtesy Sarasota County

Cosentino also has argued that a 2013 engineering study undertaken for the county by a Jacksonville firm showed it would be less expensive in the long term for the county to build a seawall on the Gulf to stabilize the road than to undertake periodic maintenance of it. The County Commission seated at the time the report was issued declined to support any of the measures — including construction of a seawall — that the firm, Taylor Engineering, proposed. The board continued to keep the road closed to traffic.

The commission in May 2016 incorporated into its resulting road vacation resolution a stipulation by the petitioners that all public access, except by motor vehicle, would continue on the road segment. A second stipulation called for an additional 5-foot-wide easement from the road, across one petitioner’s private property, to the Gulf of Mexico.

The latest county action

In an Oct. 25 motion, Assistant County Attorney Pearce asked Mercurio to dismiss the final count against the county in Cosentino’s complaint. That also regards the Coastal Setback Variance.

Pearce wrote that Cosentino has argued that the County Commission’s approval of the variance would result in construction in the Coastal High Hazard Area seaward of the county’s Gulf Beach Setback Line (GBSL).

Cosentino has no standing to challenge the board action of May 11, 2016, Pearce continued. Cosentino purchased property at 10 Beach Road in September 2016, after he filed suit against the county, Pearce pointed out. Cosentino has made that clear in his response to a question in the county’s first set of interrogatories in the case, Pearce added. “He cannot manufacture standing,” Pearce wrote.

Instead of using his ownership of the 10 Beach Road parcel, Pearce continued, “Cosentino must instead rely on any interests associated with his alleged use of lands seaward of the mean high water line” in the vicinity of the Coastal Setback Variance, as well as ownership of other lands on Siesta Key.

Mike Consentino addresses the County Commission on Jan. 25. File photo

The Florida Statutes define an “aggrieved or adversely affected party” as one who will suffer more than the rest of the members of the community at the heart of a matter, Pearce added, citing case law to underscore his argument.

Yet, Pearce continued, “Cosentino cannot demonstrate he suffers an adverse effect to a protected interest which exceeds in degree the general interest in the community good shared by all persons.” Therefore, Cosentino lacks standing, Pearce wrote.

In the county’s first set of interrogatories, Pearce noted, Cosentino wrote the following in response to a question about why he was adversely affected by the approval of the Coastal Setback Variance:

“I own property nearby and I personally use the beach and enjoy the natural areas and sense of place in this block of Beach Road from my property located at 10 Beach Road approximately 500 feet from subject parcels …” Cosentino added that the variance will lead to “the tripling of allowable development (via vacation of a public right-of-way) …” Further, Cosentino responded that he believes the Maddens feel they will be able to sell each of the new dwellings they plan — all of which will be more than 3,000 square feet — for millions of dollars, “thereby creating a huge financial incentive to [the Maddens] … [and] resulting in a windfall to [them] at the public expense and loss of public use of Beach Road for vehicular thoroughfare forever …”
Additionally, Pearce wrote, Cosentino contended that the Maddens won the Coastal Setback Variance because they had given campaign contributions to commissioners on the board that made the May 11, 2016 decision.

“He gives no real explanation as to how ‘additional’ units at the Madden property would lessen his enjoyment of the natural environs at his property,” Pearce noted. “Instead, he simply provides an unsubstantiated rant about an alleged windfall to the Maddens.”

A graphic shows the segment of North Beach Road that the County Commission voted to vacate in May 2016. Image courtesy Sarasota County

Pearce then responded to an argument Cosentino made regarding the county’s Future Land Use Map. The section of the county’s Comprehensive Plan that Cosentino cited refers to rezoning petitions on the county’s barrier islands, Pearce pointed out. “Here, the Maddens did not seek to rezone the property or otherwise change the density requirements found in the Zoning Regulations,” Pearce noted, adding that their plan is to reduce the number of dwelling units on the three parcels they own on North Beach Road.

“Assembling these lots with the underlying acreage from the road vacation does not result in an impermissible increase in the density or intensity in the use of land,” Pearce continued. “If such were the case, then any assemblage of lots would violate this future land use policy. Such an interpretation creates an absurd result.”

Pearce also responded to Cosentino’s argument that, in its approval of the Coastal Setback Variance, the County Commission violated the Comprehensive Plan policy prohibiting vacation of road segments “on waterfronts along any creek, river, lake, bay or Gulf access point.” Pearce wrote that Cosentino was conflating the variance with the road vacation “to reach a conclusory statement.”

Furthermore, Pearce pointed out, in his April ruling in favor of the Maddens, Mercurio agreed that the road vacation was not a development order. In other words, Mercurio sided with the Maddens’ assertion that the road vacation and the variance were two separate matters before the board and that the County Commission was not obligated to approve the road vacation before granting a Coastal Setback Variance to the couple.

“Simply put,” Pearce continued in the Oct. 25 motion, “the variance neither encourages nor discourages right-of-way use; it permits the development of six conforming residential units on the [Maddens’] properties.”

Therefore, Pearce asked the judge to grant summary judgment on Cosentino’s challenge of the Coastal Setback Variance in Count I of Cosentino’s Second Amended Complaint. He also asked the judge to “grant final summary judgment to Sarasota County.”